It’s been over two months since “30 Rock” star Tracy Morgan was left in critical condition after Wal-Mart truck driver Kevin Roper slammed into his Mercedez-Benz limousine van, severely injuring Morgan and killing longtime friend James McNair. Morgan’s attorney, Benedict Morelli, told “The Today Show” Monday that he is “struggling, but fighting hard.”

Morgan sustained several cracked ribs and a broken leg after the June 7 accident.

“He’s got the fighting spirit, but every day is different. Some days he’s very down,” Morelli said.

Morelli said the damage for Morgan is “not only physical, but emotional” after his mentor McNair’s death.

“Now, there’s been a couple of people who said he’s doing great,” Morelli said. “And that’s not true. What is true is he’s struggling and he’s fighting.”

Morgan has filed a lawsuit against Wal-Mart because Roper had been on the road driving for 25 hours, which Morelli said is “the norm” for Wal-Mart truck drivers. The lawsuit seeks punitive and compensatory damages. Roper plead not guilty to criminal charges of vehicular homicide and assault.

“That’s what they set up,” Morelli told NBC’s Matt Lauer. “They know.They have to make sure that this doesn’t happen.”